Bourell v. Birch Hill Court Homeowners Assn., Inc. et al

Filing 42

Opinion and Order Pursuant to Fed R. Civ. P. 41(a)(2), Plaintiff's Second Letter, Doc #: 41 , construed as a Motion for Voluntary Dismissal, is granted and the above-captioned case dismissed with prejudice. Signed by Judge Dan Aaron Polster on 4/18/2016. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KAREN BOURELL,
Plaintiff,
vs.

CASE NO. 1:14-cv-02802
JUDGE DAN AARON POLSTER
OPINION AND ORDER

BIRCH HILL COURT HOMEOWNERS
ASSN. INC., et al.,
Defendants.
On April 14, 2016, Karen Bourell, pro se, faxed to the Court a Letter clearly indicating
she wished to withdraw her case with prejudice. Pl.’s Second Letter, Doc #: 41. On April 15,
Plaintiff called the Court again stating that she wanted to close her case and asking if there was a
form she needed to file. Accordingly, the Court construes Plaintiff’s Second Letter, Doc #: 41, as
a Motion for Voluntary Dismissal, and grants Plaintiff’s request to dismiss her case with
prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). As discussed below, the Court considers
dismissal of this case with prejudice proper.
I.

Background
On December 19, 2014, Plaintiff Karen Bourell (“Plaintiff”) filed the above-captioned

case against Birch Hill Court Homeowners Association, Inc., M2 Management Group, LLC, Ott
& Associates, Co., LPA, and several other parties in their individual capacities (collectively,
“Defendants”). Am. Compl., Doc #: 25. In the First Amended Complaint, Plaintiff sought
“damages and redress for having been discriminated against on the basis of her disability by the
homeowners association associated with her condominium development, by its officers, and by
various persons and entities in active concert with them.” Id. ¶ 1. Plaintiff also alleged that
Defendants “both failed to provide such reasonable accommodations to the Plaintiff as were
required by law, and actively combined to deny her the rights and benefits of ownership in her
own home, through a series of actions and inactions which treated here differently, and less
favorably, than other, non-disabled residents.” Id. ¶ 2.
II.

Case History
This case has a lengthy procedural history, including several attempts at settlement

negotiations, teleconferences, and changes of counsel. The Court finds it appropriate to describe
this background in some detail.
After Plaintiff filed her original Complaint, during a teleconference held on January 27,
2015, the Court directed the parties to engage in serious settlement discussions. See January 27,
2015, Minutes of Proceedings. The Court also scheduled a Case Management Conference. Id.
On February 27, 2015, counsel for both sides agreed to engage in initial discovery, including
exchanging initial disclosures and relevant documents. See February 27, 2015, Minutes of
Proceedings. The Court held a Case Management Conference on April 21, 2015, and set
deadlines for discovery and dispositive motions. Case Mgmt. Plan, Doc #: 20.
On June 19, 2015, Plaintiff’s counsel of record—David H. Brown and Nicholas A.
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Panagopoulos II—moved to withdraw as Plaintiff’s attorneys. Mot. to Withdraw as Counsel,
Doc #: 21. In their Motion to Withdraw, Attorneys Brown and Panagopoulos stated that they had
“difficulty reconciling differences regarding strategy and case management.” Id. at 1. The
Motion stated that withdrawal was “proper in this case based on the strategic and case
management disagreements that have severely impeded counsel’s ability to effectively represent
Ms. Bourell.” Id. On June 22, 2015, the Court granted the Motion to Withdraw and allotted time
for Plaintiff to retain new counsel.
On September 3, 2015, the Court held a teleconference with counsel, including Plaintiff’s
new counsel of record, attorneys Raymond V. Vasvari, Jr. and K. Ann Zimmerman. Notice of
Appearance, Doc #: 23. The parties again agreed to make all attempts to settle the matter and file
a notice of resolution with the Court by October 2, 2015. See September 3, 2015, Minutes of
Proceedings. Absent such a resolution, Plaintiff agreed to file a streamlined amended complaint
by the same date. Id.
On October 2, 2015, Plaintiff filed a First Amended Complaint. First Am. Compl., Doc
#: 25. Plaintiff also filed a Stipulated Motion to Dismiss Certain Defendants, Doc. #: 26, which
the Court granted on October 13, 2015. The Court held two teleconferences in November 2015,
discussing ongoing settlement negotiations and preliminary discovery. Plaintiff also received a
discovery extension. See December 28, 2015, Minutes of Proceedings. On January 5, 2016, with
no settlement having been reached and only the initial exchange of documents, Plaintiff’s
counsel once again moved to withdraw. In their Motion to Withdraw, Attorneys Vasvari and
Zimmerman stated that the general basis for withdrawal was “that the Plaintiff ha[d] made
rendering effective representation exceptionally, and unreasonably difficult, if even possible,
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through various actions and inactions over the last two months.” Mot. for Leave to Withdraw as
Counsel, Doc #: 31. The Motion went on to describe Plaintiff’s difficult behavior:
!

Plaintiff has informed counsel that “her doctors no longer want her to
work” with counsel, though this has not been independently verified
with the doctors;

!

Plaintiff has informed counsel that she has obtained successor
counsel, but has not identified successor counsel, despite requests that
she do so;

!

Plaintiff has instructed counsel not to attend the telephonic case
management conference set for January 5, 2016;

!

Plaintiff has instructed counsel not to negotiate on her behalf during
that conference;

!

Plaintiff has informed counsel that “her doctors have found”
replacement counsel;

!

Plaintiff has stated that counsel “no longer needs to be involved” in
her case.

Id. at 1–2. The Court granted the Motion to Withdraw on January 5, 2016. Minutes and Order,
Doc #: 32.
In addition to granting the Motion to Withdraw, the Court ordered Plaintiff to file with
the Court, by January 22, 2016, a response showing cause why the case should not be dismissed
for failure to prosecute. Id. The Court noted that the case had been pending “for more than a
year, tying up the Court’s and defendants’ resources.” Id. at 2. The Court also noted that
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Plaintiff was either unwilling or unable to cooperate with counsel, as evidenced by the various
changes of counsel in this case. Id. Finally, based on the Court’s dealings with Plaintiff and the
representations of counsel, the Court observed, “Plaintiff may not be mentally competent and is
clearly not able to represent herself.” Id.; see also Mot. to Excuse Appearance of Pl. at Case
Mgmt. Conference, Doc #: 18.
On January 20, 2016, Plaintiff’s third retained counsel in this case, Attorney Kristopher
B. Immel, filed a Notice of Appearance. Notice of Appearance, Doc #: 33. Plaintiff then filed a
Motion to Dismiss pursuant to Fed. R. Civ. P. 41(a)(2). Pl.’s Mot. to Dismiss, Doc #: 34. In the
Motion to Dismiss, Plaintiff sought to voluntarily dismiss her Complaint without prejudice to
allow Attorney Immel adequate time to review all facts and documents. Id. at 1. On January 29,
2016, Defendants filed a Brief in Opposition to Plaintiff’s Motion to Dismiss Without Prejudice.
Def.’s Br. in Opp., Doc #: 35. Defendants argued that the case should be dismissed with
prejudice for a number of reasons. Defendants asserted that this was “actually Plaintiff’s second
lawsuit articulating these claims against virtually all of the same various Defendants.” Id. at 3
(emphasis in original). Court documents establish that, “on or about August 30, 2013, Plaintiff
filed a pro se Complaint in the Medina Municipal Court alleging the same claims involved in the
current litigation.” Id. Ultimately, that case was dismissed without prejudice to allow for a
single re-filing. Id. Defendants also noted Plaintiff’s various changes of counsel in this case. Id.
In an impromptu teleconference held on January 29, 2016, the Court granted Attorney
Immel thirty days to “get up to speed and discuss resolving the case with defense counsel.” See
February 1, 2016, Minutes of Proceedings. Based on discussions during the teleconference,
Plaintiff agreed to voluntarily withdraw the Motion to Dismiss, as Attorney Immel had not been
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aware of the previous Medina Municipal Court dismissal when he filed the Motion. Id.
Less than two months later, Attorney Immel filed a Motion to Withdraw as Counsel.
Mot. to Withdraw, Doc #: 37. Similar to the previous Motions to Withdraw in this case,
Attorney Immel cited “differences regarding the strategy and case management.” Id. at 1. The
Court held a scheduled teleconference on March 1, 2016. See Teleconference Minutes, Doc #:
38. The parties discussed Attorney Immel’s Motion to Withdraw. Id. Based upon statements by
Ms. Bourell, herself, during the teleconference, the Court suggested some settlement terms and
directed the parties to notify the Court no later than March 15, 2016, as to whether the matter was
settled. Id. at 2. The Court also gave Attorney Immel leave to withdraw after March 15, 2016.
In its Order, the Court clearly stated, “As this will be the third set of attorneys for Plaintiff who
have withdrawn from the case, the case will be dismissed with prejudice for want of prosecution
if Plaintiff elects not to settle the case on these terms.” Id.
On March 18, 2016, Plaintiff’s counsel notified the Court that the parties had settled the
matter and were executing a settlement agreement. See April 8, 2016, Minutes of Proceedings.
However, during a counsel-initiated teleconference held on April 8, 2016, Attorney Immel stated
that Plaintiff was seeking changes in the proposed settlement. Id. The Court gave the parties
until noon on April 15, 2016, to file an executed settlement agreement. Id. If the parties failed to
do so, the Court stated that the case would be dismissed with prejudice. Id.
On April 12, 2016, the Court received a Letter from Plaintiff. Pl.’s Letter, Doc #: 39.
Although the Letter was not entirely clear in its purpose, the Court attempted to construe this pro
se filing fairly and liberally. The Court understood the Letter to make three specific requests: (1)
the removal of her attorney, (2) a proposed settlement agreement, and (3) a request to withdraw
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the Amended Complaint. See Order, Doc #: 40. The Court granted Plaintiff’s request to remove
Attorney Immel, who had previously filed a Motion to Withdraw in this case. Id. at 2. However,
the Court denied Plaintiff’s other two requests. First, the Court noted that the attached
“settlement agreement” was neither an “agreement” nor “executed,” as it was clear that the
Defendants had not signed the document. Id. The Court reiterated that the parties had until noon
on April 15, 2016, to submit an executed agreement, or the case would be dismissed with
prejudice. Id.
Second, the Court was unwilling to consider Plaintiff’s request to dismiss the Amended
Complaint, as it was unclear, given the context of Plaintiff’s Letter, that she understood what she
was asking for with this statement. Id. Based on the Court’s dealings with Plaintiff and the
representations of her various attorneys in this case, it is apparent that Plaintiff has significant
physical and mental challenges. In fact, Plaintiff’s Letter plainly states that she has had trouble
understanding the nature of this case and “cannot take responsibility for things [she] cannot
comprehend.” Pl.’s Letter 1. Thus, out of caution, the Court directed that if Plaintiff wished to
move to dismiss the Amended Complaint, she must do so “knowingly and clearly,” before the
April 15, 2016, noon deadline. Order 3, Doc #: 40.
On April 14, 2016 (filed April 15), Plaintiff faxed to the Court a Second Letter
(accompanied by a phone call on April 15) that clearly expressed Plaintiff’s desire to dismiss the
case with prejudice. Doc #: 41.
III.

Discussion
Even absent Plaintiff’s clear request for dismissal, the Court would be inclined to dismiss

the above-captioned case with prejudice for failure to prosecute for several reasons.
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First, as the Court has previously observed, it is clear that Plaintiff does not have the
ability to prosecute this case pro se, and she has never sought to do so. Plaintiff has now gone
through three sets of attorneys in the sixteen months this case has been pending, all of whom
cited similar justifications for their later withdrawal as counsel. See, e.g., Mot. to Withdraw as
Counsel, Doc #: 21; Mot. for Leave to Withdraw as Counsel, Doc #: 31; Mot. to Withdraw, Doc
#: 37. A common theme among these motions was Plaintiff’s inability or unwillingness to
cooperate with case management plans or engage in settlement negotiations. Id. As a result,
Plaintiff’s case has not progressed after over one year of litigation.
Moreover, Plaintiff has herself indicated that she is unable to prosecute this case pro se.
See Pl.’s Letter 1 (discussing Plaintiff’s brain disorder and lack of understanding due to her
disability); see also Mot. to Excuse Pl. From Attending Case Mgmt. Conf., Doc #:18 (noting that
Plaintiff “has enough insight to recognize that her direct participation in the back and forth of
settlement discussions will substantially exacerbate her symptoms”).
Second, after sixteen months of litigation, Plaintiff has failed to advance the instant case
through motion practice, settlement negotiations, or discovery. Plaintiff’s former attorneys noted
Plaintiff’s difficulty to cooperate with case management plans. See, e.g., Mot. to Withdraw as
Counsel, Doc #: 21; Mot. for Leave to Withdraw as Counsel, Doc #: 31; Mot. to Withdraw, Doc
#: 37. Plaintiff has also not cooperated with her attorneys’ efforts to resolve this case.
Furthermore, beyond the initial exchange of documents, Plaintiff has not fulfilled requests for
discovery in this case—in spite of the Court having granted several extensions to do so.
Finally, the Court has given Plaintiff ample opportunity to prosecute the instant case. The
Court issued a show cause Order on January 5, 2016, notifying Plaintiff that her failure to
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prosecute this case could lead to dismissal. Order, Doc #: 32. In addition, the Court granted
various extensions to allow Plaintiff the time and opportunity to fulfill discovery obligations and
discuss settlement options. See December 28, 2015, Minutes of Proceedings; March 1, 2016,
Minutes of Proceedings; April 8, 2016, Minutes of Proceedings. Plaintiff has clearly been
warned that her failure to prosecute would result in dismissal with prejudice. Order, Doc #:32
(“Accordingly, Plaintiff is ordered to file with the Court, by Friday, January 22, 2016, a response
showing cause why this case should not be dismissed for failure to prosecute. Failure to do so
will result in the dismissal of this case”); April 8, 2016, Minutes of Proceedings (“Following the
discussion, the Court gave the parties until noon on April 15, 2016, to file with the Court an
executed agreement based on the March 1, 2016, terms or the case will be dismissed with
prejudice”).
Ultimately, Plaintiff has had sixteen months to prosecute her case, has not done so, and
appears unlikely to be able to do so. Therefore, the Court believes dismissal of the case with
prejudice is appropriate.
IV.

Conclusion
Pursuant to Fed R. Civ. P. 41(a)(2), Plaintiff’s Second Letter, Doc #: 41, construed as a

Motion for Voluntary Dismissal, is GRANTED and the above-captioned case dismissed with
prejudice.
IT IS SO ORDERED.
/s/ Dan A. Polster
Apr. 18, 2016
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE

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